Brigham Young University law professor Aaron Nielson
Law students everywhere, be warned — the Federal Judges Law Clerk Hiring Plan is dead. If you want a clerkship, don't think you can wait until the fall of your 3L year to apply. You can't. To maximize your chance of getting hired, you should apply much earlier. The U.S. Court of Appeals for the D.C. Circuit's announcement last week that its judges will not follow the plan is the coup de grace, confirming what insiders have known for years: the plan does not work. Applicants can't count on judges to follow it. The "graduate loophole" means there are fewer slots for students. And instead of curbing "exploding offers," the plan encourages them. Students, law schools and judges alike should be thankful that this failed experiment is finally coming to an end.
The plan's aspirations were noble. Proponents believed that by pushing back the clerkship hiring date in a coordinated fashion, order could be brought to a chaotic process, and the jarring spectacle of future clerks being hired before the second year of law school would end. But the power of positive thinking cannot change the fact that the plan has always been doomed to failure. Viewed through an antitrust lens, the problem is apparent: The idea that coordination will hold in a judiciary with hundreds of competing chambers, limited transparency and no real enforcement mechanism is hope divorced from reason. Like a cartel with too many players, the plan unravels because the temptation to hire early is just too strong.
It therefore comes as no surprise that the plan has fallen apart. Whispers are heard everywhere about judges who hire "off-plan." Indeed, some judges are unapologetic: No one voted for the plan and it makes interviewing too expensive for applicants who have to fly mad-dash all over the country. Countless other judges, however, also hire before the plan permits, but without openly showing their colors. The unfortunate upshot is clerkship applicants do not know whom to trust. The D.C. Circuit's frank admission that "a significant and increasing number of circuit judges around the country" do not follow the plan is a welcome breath of honesty.
Unfortunately, the plan's collapse is not complete. This piecemeal disintegration puts the scrupulous in a bind and makes the system unfair, unpredictable and unnecessarily stressful. Applicants who are unlucky enough to have recommenders who will not contact judges early are at a disadvantage. Judges who wait until the interview deadline risk losing preferred applicants. And law schools that devoutly follow the plan lose out to their craftier counterparts. Hopefully, the D.C. Circuit's announcement will put all involved, particularly applicants, on notice that the plan carries no moral weight. If the D.C. Circuit won't abide the plan, neither should you.
Hopefully, the plan's demise will also encourage judges to hire more law students instead of practicing lawyers to serve as clerks. Because the plan does not apply to law school graduates, many judges hire these applicants. Hiring graduates is not all bad. Some judges prefer having an experienced hand in chambers. The problem arises, however, when judges hire graduate applicants because of the plan. The truth is that it can be difficult for judges who want to abide by the plan to hire in the hurly-burly-musical-chairs-on-steroids atmosphere that the plan creates. Some judges hire graduates for no other reason than to reduce the commotion. That is no reason to hire a clerk. With the death of the plan, the "graduate loophole" is now closed, and all applicants can be evaluated on their merits.
All the while, the plan encourages "exploding offers" — offers that must be accepted or rejected on the spot, often before the applicant has the opportunity to complete other interviews or consult with anyone else. Because the plan creates a compressed hiring season, judges know that if they do not hire quickly, prized applicants will be snatched away. Hence the plan created incentives for judges to make "exploding offers," even when the applicant obviously is thrust into an uncomfortable position. This reality should give pause to the judiciary, where, above all else, fairness and decorum ought to shine. With the demise of the plan, judges can now take more time to hire clerks, thereby hopefully ending "exploding offers" forever. The D.C. Circuit's collective pledge not to engage in this unseemly practice should be taken to heart by judges everywhere.
Considering the plan's real-world effects, and not just its lofty aspirations, no one should mourn the plan's passing. All the good intentions in the world won't make it work. The system before the plan was not perfect, but at least it was honest. No one had to hide, and everyone played by the same rules. The D.C. Circuit is exactly right — if we can't have order, we can at least have transparency. Until the last vestiges of the plan are gone, however, law students everywhere, be warned.
Aaron L. Nielson is an associate professor at Brigham Young University J. Reuben Clark Law School. Before joining the academy, he served as a law clerk on the Fifth and D.C. circuits.
